Opinion
G030798.
10-30-2003
THE PEOPLE, Plaintiff and Respondent, v. ALONZO FRANK OROSCO, Defendant and Appellant.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Marilyn L. George, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
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Before Sills, P. J., Rylaarsdam, J., and Ikola, J.
A jury found Alonzo Frank Orosco guilty of one count of possession of methamphetamine, one count of being under the influence of methamphetamine, one count of driving under the influence of a controlled substance, one count of possession of a smoking device, and one count of possession of child pornography. In a bifurcated trial, the court found true the allegation Orosco had suffered a prior conviction for driving under the influence of alcohol. The court sentenced Orosco to five years formal probation.
The only issue on appeal is whether the court properly admitted evidence Orosco had 50 stuffed animals in the bed of his truck when arrested. We affirm the judgment.
FACTS
During a traffic stop on December 11, 2001, Irvine police arrested Orosco for an outstanding bench warrant. A search of his truck disclosed a glass pipe and a usable amount of methamphetamine under the drivers seat. Under the passenger seat the police found a box containing 66 photographs of females, some as young as four to six years of age, naked. In the bed of the truck, the police found a duffel bag containing around 50 small, stuffed animals. Orosco told the arresting officer his fingerprints would likely be found on the photographs because he had found them that morning while cleaning his truck. He said they were "bad" and had probably been left there several weeks earlier by a hitchhiker he had picked up.
DISCUSSION
Orosco argues the trial court improperly admitted evidence he had 50 stuffed animals in the bed of his truck because they constituted "other crimes evidence," and that there was no evidence he was a child molester. But Orosco never raised this objection in the trial court below and therefore the issue has not been preserved for appellate review. (People v. Marks (2003) 31 Cal.4th 197, 228-229; People v. Williams (1988) 44 Cal.3d 883, 906.)
At both the Evidence Code section 402 hearing and trial, Orosco argued that under Evidence Code section 352 the evidence was "just not relevant." His counsel explained that, "to be relevant [] there [must] be some probative value in limiting that to any of the substantive charges that the People have alleged and that there is no ground of relevance, merely the district attorney can only offer speculation that would—that could offer why my client had any of those items being related to any of the charges. Thats my objection to those . . . ."
The prosecutor responded that, "in order for me to convince the jury of the violation of [Penal Code section] 311.11, I have to prove to them a mental state requirement. . . . [¶] I think this is circumstantial evidence showing the knowledge of the defendant, when he possessed child pornography . . . ." When asked if the theory was that "he uses animals to attract children," the prosecutor replied, "Absolutely." The prosecutor ended by arguing, "Now, I dont intend to argue that as far as saying, well, he did—to make it give an indication that he is molesting children, but I think all these are circumstantial evidence that the jury is entitled to take into account in making a decision a far as whether or not the People proved the knowledge element."
At the conclusion of the 402 hearing, the court ruled: "As far as the bag of 50 stuffed animals, I think that desire to attract children goes to the issue of whether or not he knew that there was illicit alleged child pornography in the box. My inclination would be to let the bag of 50 stuffed animals into evidence. I think the probative value of that outweighs its prejudicial effect."
The court upheld Oroscos relevancy objection to the admissibility of what the prosecutor described as "a tube that—making it look like its candy—that says on it `M&M Candy which had lotion in it."
Our Supreme Court recently explained that, "We have held an `"objection must be made in such a way as to alert the trial court to the nature of the anticipated evidence and the basis on which exclusion is sought, and to afford the People an opportunity to establish its admissibility." [Citations omitted.] A general objection to the admission or exclusion of evidence, or one based on a different ground from that advanced at trial, does not preserve the claim for appeal." (People v. Marks, supra, 31 Cal.4th at p. 228.) More to the point, a "general objection on grounds of relevancy is not adequate to preserve an issue with respect to admission of other-crimes evidence for appeal. [Citation.]" (People v. Williams, supra, 44 Cal.3d at p. 906.) That is especially true where, as here, the prosecutor made it clear that the evidence only went to the element of knowledge. (Id. at p. 907.)
By challenging the admissibility of the evidence solely on the ground of relevance, Orosco failed to preserve the claim for appeal and thus this court declines to review it. (People v. Marks, supra, 31 Cal.4th at p. 228 [courts do not review claims not raised at trial].) Furthermore, Orosco cannot point to anything in the record that suggests the prosecutor improperly used the stuffed animals as other-crimes evidence. Given the record contains substantial evidence of guilt and there is no reasonable probability the result would have been different if the evidence of the stuffed animals had not been admitted, the judgment is affirmed.